Jury selection in the federal trial of Dzhokar Tsarnaev, accused of plotting and carrying out an attack on the Boston Marathon in April 2013, began on January 5. U.S. District Judge George O’Toole, charged with overseeing the process, said that opening statements could begin as soon as January 26. That day came and went.

Considering the gravity of the charges brought against Tsarnaev—30 in all, 17 of which include the possibility of the death penalty—perhaps it’s no wonder that questioning for a jury pool of 1,373 has proceeded at a slower pace than expected. For many people, it’s not easy to send another human being to his death.

But the delay also has something to do with the jury pool itself.

A few selections from the official juror questionnaires: “I am set in my ways and this kid is GUILTY.” “Caught red-handed, should not waste the $ on the trial.” “We all know he’s guilty so quit wasting everybody’s time with a jury and string him up.”

Indeed, Tsarnaev’s defense team filed its third request for a change in venue on January 22. They’re concerned about the 68 percent of potential jurors who think the Russian youth is guilty and the 85 percent who either think he’s guilty or feel a personal connection to the Marathon bombing. As wisdom has it, maybe the third time’s the charm?

Of course, it might not matter. Prosecutors point out that 60 percent of the same jury pool said they could set aside their personal opinions. Plus, where in America would Tsarnaev not face prejudice? After all, millions watched the aftermath of the attack on national television, including a police shootout in nearby Watertown that resulted in the death of Dzhokar’s older brother and co-conspirator, Tamerlan.

There’s no silver bullet to guarantee justice in these difficult circumstances. Still, there’s a trusted civic handbook: the Constitution.

As Yale law professor Akhil Amar explains in The Bill of Rights, juries are enshrined in three different amendments: the Fifth Amendment (grand jury), the Sixth Amendment (criminal jury) and the Seventh Amendment (civil jury). Article III provides specifically for trial by jury in federal criminal cases—precisely what is unfolding now in Boston.

To the Founding generation, juries mattered. The only right common to all state constitutions written between 1776 and 1787 was the right to trial by jury in criminal cases. The Declaration of Independence condemns King George III and Parliament for “depriving us, in many cases, of the benefits of trial by jury.” Resolutions passed by the First Continental Congress made reference to the “inestimable privilege of trial by jury.”

Why? The colonists knew of the Star Chamber, the Bloody Assizes and Algernon Sidney. They knew what ambitious, unchecked judges might do to get ahead. They knew that corrupt government officials of all kinds threaten liberty.

Juries, then, were a targeted response to such threats. Jurors are “populist protectors,” to borrow a phrase from Amar; they are drawn from “We the People,” and have the right to refuse a conviction. Jurors are also members of the local community with the power to resist federal persecution. And jurors are participants in the political process, akin to members of a militia, who comprise “the democratic branch of the judicial power.

Alexis de Tocqueville, that great observer of American society, called juries “public schools” in which citizen-jurors learn the civic virtues necessary for the nation’s success. He also saw the jury as a bastion of democratic power:

The institution of the jury … places the real direction of society in the hands of the governed … and not in that of the government. … [It] invests the people, or that class of citizens, with the direction of society. … The jury system as it is understood in America appears to me to be as direct and extreme a consequence of the sovereignty of the people as universal suffrage. They are two instruments of equal power, which contribute to the supremacy of the majority.

It’s hard to walk away from Amar and Tocqueville without an appreciation for the centrality of juries to the American constitutional system. More relevant to the Boston Marathon bombing trial, it’s difficult to avoid a sense of the enormous responsibility entrusted to each juror. In jury selection, justice really is at stake.

]]>http://blog.constitutioncenter.org/2015/02/in-defense-of-the-jury-trial/feed/0An important week for the same-sex marriage debatehttp://blog.constitutioncenter.org/2015/01/an-important-week-for-the-same-sex-marriage-debate/
http://blog.constitutioncenter.org/2015/01/an-important-week-for-the-same-sex-marriage-debate/#respondMon, 05 Jan 2015 11:00:28 +0000http://blog.constitutioncenter.org/?p=36839The first full week of January will be a big one for the national debate over same-sex marriage bans, starting in Florida on early Tuesday and ending with a private Supreme Court conference on Friday.

Late last week, a federal judge cleared the way, at least for now, for same-sex couples to apply for marriage licenses in Florida. On New Year’s Day, U.S. District Judge Robert L. Hinkle in Tallahassee issued an order clearing up a preliminary injunction he issued last August, at the request of a clerk in Washington County tasked with handling marriage licenses.

Judge Hinkle said the clerk needed to accept same-sex marriage applications in Washington County as a matter of the law, and that clerks across the state needed to heed his words.

“Reasonable people can debate whether the ruling in this case was correct and who it binds. There should be no debate, however, on the question whether a clerk of court may follow the ruling, even for marriage-license applicants who are not parties to this case,” Hinkle said. “But as set out in the order that announced issuance of the preliminary injunction, the Constitution requires the Clerk to issue such licenses.”

Hinkle added italics for emphasis to his order, to make sure the legal counsel for Florida’s clerks understood his point, and after the order became public, the attorneys for the state clerks said the clerks should start accepting same-sex marriage licenses across the state. The ruling goes into effect at 12:01 a.m. on Tuesday, and it remains to be seen if all clerks will accept the license applications.

But the biggest day for the future of same-sex marriage bans will be on Friday, as the Supreme Court meets in a private conference to decide if it will take a new set of cases to clarify its June 2013 ruling in the United States v. Windsor case.

Back then, a divided Court didn’t directly decide the legality of same-sex marriage across the country or within states. The constitutional question settled by the Court, in Justice Anthony Kennedy’s majority opinion, was that the federal Defense of Marriage Act was unconstitutional because it denied rights under the Fifth Amendment to same-sex couples married under state laws.

However, federal and state judges in numerous states have used Windsor and some other Court decisions to overturn same-sex marriage bans that were approved by voters in state constitutional amendments or by popular vote.

As of Tuesday, same-sex marriages will be legal in 36 states and the District of Columbia as the legal process continues in the Supreme Court. But on Friday, the Justices will hear appeals from the Sixth Circuit and Louisiana on about five rulings upholding same-sex marriages bans.

On November 6, 2014, a decision of the Cincinnati-based U.S. Court of Appeals for the Sixth Circuit ruled that appeals about state-approved same-sex marriage bans should be left to the political processes, with voters and legislatures deciding the issue.

The ruling from Judge Jeffrey Sutton went against a series of rulings against the bans in other federal courts, setting up a likely acceptance of the cases in the Supreme Court.

If at least four Justices vote in private to accept the same-sex marriage cases, the announcement could come late on January 9, or on Monday, January 12, when the Court is scheduled to release orders. The Court has two other conference days scheduled in January, but a further delay would make it less likely that the case will be argued in the current term, which ends in late June 2015.

The stakes in any same-sex marriage decisions with national implications are high. According to the National Council of State Legislatures, 23 states have allowed same-sex marriages through judicial rulings, but 31 states have constitutional or statutory provisions on the books that explicitly define marriage as between a man and a woman.

]]>http://blog.constitutioncenter.org/2015/01/an-important-week-for-the-same-sex-marriage-debate/feed/0Constitution Daily’s five most-popular stories of 2014http://blog.constitutioncenter.org/2014/12/constitution-dailys-five-most-popular-stories-of-2014/
http://blog.constitutioncenter.org/2014/12/constitution-dailys-five-most-popular-stories-of-2014/#respondWed, 31 Dec 2014 11:25:32 +0000http://blog.constitutioncenter.org/?p=36783The people have spoken: It’s time to reveal the five most-viewed stories on Constitution Daily for the entire year of 2014!

Thanks to the power of Google Analytics and our relationship with Yahoo! News, we have a pretty good idea about how many people view our stories about the Constitution, key moments in American history, and contemporary issues.

Stories from Constitution Daily appear on the National Constitution Center’s website in addition to this blog, on Yahoo! News, on the local Philly.com portal site in Philadelphia, and several other online publishing sites.

So based an analysis of these sources, here are the top five stories, in reverse order, that were read by the most people in 2015.

The current controversy over President Barack Obama’s use of executive orders has many Republicans steamed and Democrats on the defensive. But has the President really issued more orders that his predecessors?

In terms of executive orders, quality counts as much as quantity, and several significant Obama executive orders have some conservatives rallying around a lawsuit against the president, as well as threatening impeachment.

The D-Day anniversary this June was a historical milestones for many reasons, especially as the number of World War II veterans declines as time marches on.

The numbers involved in the Normandy landings are still staggering today, and unlikely to be seen again in a modern age of combat. Here are a few of the numbers, and some fascinating facts about this historic event.

George Washington is best remembered as a military leader, Constitutional convention delegate and the first President of the United States. But there was a lot more to Washington than a few legends and talk about his teeth.

Here are a few facts about Washington, the private person, that show more about this multidimensional character who led the Founding Fathers at a crucial time.
Story link:

With the events of Ferguson, Missouri, close in mind, a New York grand jury voted on Wednesday not to bring charges against Officer Daniel Pantaleo for the death of Eric Garner.

The New York Times reports that the jury took less than a day to deliberate after viewing footage of the homicide and interrogating an array of witnesses, including Officer Pantaleo himself. Finding insufficient evidence to merit a trial, the jury effectively ended the case.

But the national debate over race and criminal justice has only grown more intense.

Critical to that debate will be the results of a civil rights investigation announced by the Justice Department on Wednesday night. As fate would have it, Loretta Lynch, U.S. Attorney for the Eastern District of New York and President Obama’s nominee to replace outgoing Attorney General Eric Holder, will lead the inquiry.

Speaking from Washington, President Obama weighed in with the same restraint he showed in addressing a grand jury’s vote not to indict Officer Darren Wilson, the man responsible for the death of Ferguson teenager Michael Brown.

“When anybody in this country is not being treated equally under the law, that’s a problem,” he said. “And it’s my job as President to help solve it.”

Indeed, solution-seekers from all sides are turning their attention to the grand jury process—a right enshrined in the U.S. Constitution by the Fifth Amendment but one of the few protections in the Bill of Rights that has not been applied to the states by the 14th Amendment.

Like its criminal and civil counterparts, the grand jury is comprised of members of the general public who are chosen at random. Unlike its counterparts, however, the grand jury is a kind of investigative body that can, for example, compel witnesses to testify.

In considering Eric Garner’s death, the grand jury solicited testimony from Officer Pantaleo, who narrated for the jury three different videos of the incident.

In the majority of cases, defendants do not testify before a grand jury. But as defense attorney James Culleton told the New York Times, police cases are important exceptions.

“The justification defense—put it in front of the grand jury,” said Culleton. “I believe the grand jury wants to hear what a police officer has to say. What happened? What was happening around him at the time?”

For now, explanations for the failed indictment are rife with speculation. However, District Attorney Daniel Donovan is seeking permission to “publicly release specific information” related to the jury’s deliberations. That permission could be granted before day’s end.

Still, the simplest explanation for a failed indictment points to the details of this specific case. As attorney Marvyn Kornberg told the New York Times, an autopsy of Garner’s body listed several contributing factors in his death, including obesity, heart disease and asthma.

“There were so many causes of death in the autopsy report,” said Kornberg. “You have to prove [Officer Pantaleo] caused his death.”

Another view, supported by data analyzed by FiveThirtyEight, finds a systemic bias in the criminal justice system that is quick to grant law enforcement the benefit of the doubt in accusations of misconduct. Perhaps members of the public are overly inclined to trust the police, or the legal standards for holding police accountable are set too high.

Other explanations are less benign.

Some observers question the integrity of a system in which prosecutors and law enforcement have an incentive to work together and avoid stepping on each other’s toes.

Information released by the Ferguson grand jury suggests prosecutors bent their presentation in favor of Officer Wilson. A similar situation may have transpired in Staten Island, but until further information is released, it is difficult to make a sure conclusion.

And, of course, there is the problem of race.

While there is no hard evidence of racial discrimination against Officers Wilson or Pantaleo, science suggests unconscious biases may have nevertheless influenced their actions.

That is to say nothing of our nation’s long history of white supremacy and state-endorsed violence against people of color.

]]>http://blog.constitutioncenter.org/2014/12/grand-jury-declines-to-indict-new-york-police-officer-for-citizens-death/feed/0Your constitutional rights during an Ebola (or other) outbreakhttp://blog.constitutioncenter.org/2014/10/your-constitutional-rights-during-an-ebola-or-other-outbreak/
http://blog.constitutioncenter.org/2014/10/your-constitutional-rights-during-an-ebola-or-other-outbreak/#respondThu, 16 Oct 2014 15:43:46 +0000http://blog.constitutioncenter.org/?p=35599With rising concern nationally about Ebola haemorrhagic fever, the possibility of some very limited quarantines looms as efforts are underway to contain the disease. But what are your rights under such conditions?

In short, state governments, and not the federal government, have most of the power to place people in isolation or quarantine under certain circumstances. Isolation separates people who are known to be ill from those who aren’t sick. Quarantine separates people suspected of being exposed to an illness or biological agent from the general population.

Your individual rights are very limited in these circumstances, unless you can prove the government action is arbitrary.

The topic of Ebola and the Constitution is starting to get some play in legal publications; however, the precedents over the government’s power to isolate citizens go back almost 200 years.

The Constitution doesn’t directly list the power to isolate or quarantine people as a power given to the federal government, so the power to take these severe measures is reserved to the states under the 10th Amendment.

In 1824, Supreme Court Chief Justice John Marshall’s opinion in Gibbons v. Ogden drew a clear line between the federal government and the state governments when it came to regulating activities within and between states.

Marshall’s reasoning set the precedent that police powers are reserved to states for activities within their borders (with some exceptions). Those police powers include the ability to impose isolation and quarantine conditions. He said that inspection laws “form a portion of that immense mass of legislation which embraces everything within the territory of a State not surrendered to the General Government,” and quarantine laws were part of that “mass.”

Marshall’s decision also helped to define the Commerce Clause, and it is under the Commerce Clause that the federal government can impose isolation and quarantine conditions on people who travel between states, and on people entering and leaving the United States.

Under section 361 of the Public Health Service Act, the U.S. Secretary of Health and Human Services has the power to take measures to contain communicable diseases from foreign countries into the United States and between states. The Centers for Disease Control and Prevention (or CDC) acts on behalf of the Secretary in these matters.

But also under the Constitution, individuals have rights even in quarantine and isolation conditions. Under the rights of Due Process, public health regulations used to impose such conditions cant’ be “arbitrary, oppressive and unreasonable.”

There are precedents where courts have ruled that states or local governments didn’t meet a burden of proof. For example, in 1900 courts ruled against the city of San Francisco when it tried to inoculate and then quarantine Chinese residents against the bubonic plague, when the courts had doubts that plague conditions existed.

And there also precedents that authorities should provide confined people with an explanation about why they are confined and notify them they have a right to counsel and other constitutional provisions.

“Quarantine amounts to an extraordinarily serious limitation on liberty. Moreover, even a quarantine that is justified for purposes of preventing the spread of a disease to the general population can put the individuals subject to the quarantine at greater risk of becoming sick themselves—by concentrating them among others with a higher risk of being infected,” Dorf argues.

“Accordingly, judicial review of government officials’ claims that a quarantine is necessary to protect public health should not be a mere rubber stamp.”

The federal government also has a seldom-used right to impose large-scale quarantines. The federal government last issued isolation and quarantine orders during the Spanish Flu pandemic in 1918 and 1919.

Federal public health and welfare statutes also give the federal government authority to isolate and quarantine persons with certain diseases, based on an executive order issued by President George W. Bush in 2003.

Executive Order 13295 lists Ebola as one of several diseases that if suspected, provide for “the apprehension, detention, or conditional release of individuals to prevent the introduction, transmission, or spread of suspected communicable diseases.” Breaking a federal quarantine order is punishable by a fine and imprisonment.

So far, the states have handled the quarantine and isolation incidents in the few Ebola cases reported in the United States.

]]>http://blog.constitutioncenter.org/2014/10/your-constitutional-rights-during-an-ebola-or-other-outbreak/feed/0Justice Department memo explains justification for drone strikes abroadhttp://blog.constitutioncenter.org/2014/06/justice-department-memo-explains-justification-for-drone-strikes-abroad/
http://blog.constitutioncenter.org/2014/06/justice-department-memo-explains-justification-for-drone-strikes-abroad/#respondMon, 30 Jun 2014 10:00:12 +0000http://blog.constitutioncenter.org/?p=33738This week, the Justice Department released a partially redacted version of a 2010 memo explaining the Obama administration’s legal justification for the drone killing of an American citizen in Yemen.

Citing the 2001 Authorization for the Use of Military Force (AUMF) passed by Congress in the aftermath of September 11, then-Assistant Attorney General David Barron, writing for the Office of Legal Counsel, said the U.S. military was permitted to kill alleged al-Qaeda leader Anwar al-Awlaki in 2011 because the government was granted “proper public authority” as part of war under the AUMF.

As Vox explains, the “public authority” power is something akin to the ability of police officers to disobey the speed limit while chasing a suspect. The officers in that case are indeed breaking the law, but they are permitted to do so because their job requires it.

Likewise, the AUMF allowed the use of “necessary and appropriate force” to pursue al-Qaeda in the field. Barron also said the AUMF permits the attack as an act of defense against an “imminent” threat.

Critics point out that evidence of such a threat from al-Awlaki is redacted from the memo, making it difficult to determine whether the government was truly unable to capture him alive, as well as whether al-Awlaki indeed posed a serious and impending threat necessitating action.

What’s more, the legal justification for allowing the Central Intelligence Agency—rather than armed military forces—to target al-Awlaki is similarly redacted. That is important, critics argue, because it is not obvious that the AUMF extends “public authority” to the CIA.

Above all, critics say the Fifth Amendment prohibits taking an American life without due process of law.

The memo’s release is the result of separate Freedom of Information Act lawsuits brought by the New York Times and the American Civil Liberties Union. Reversing a lower court decision, the U.S. Court of Appeals for the Second Circuit ordered the disclosure.

Barron, who had been nominated to a seat on the U.S. Court of Appeals for the First Circuit, was under intense scrutiny at that time for his authorship of the controversial paper. Faced with the prospect of the Senate voting down Barron’s nomination, the Obama administration chose not to appeal the Second Circuit’s ruling.

For its part, the New York Times editorial board took issue with many parts of the memo, including the broad use of “public authority” justifications and the redaction of critical evidence.

Jameel Jaffer, deputy legal director of the ACLU, said in a statement that the memo’s disclosure is “an overdue but nonetheless crucial step toward transparency.”

“There are few questions more important than the question of when the government has the authority to kill its own citizens,” he said. “This memo’s release will allow the public to better understand the scope and implications of the authority the government is claiming.”

Pardiss Kebriaei, attorney at the Center for Constitutional Rights, said in a statement that the memo was ”built on gross distortions of law” and that “the United States loosening and redefining international rules governing the use of force and war is ultimately not going to make anyone any safer.”

Nicandro Iannacci is a web strategist at the National Constitution Center.

]]>http://blog.constitutioncenter.org/2014/06/justice-department-memo-explains-justification-for-drone-strikes-abroad/feed/0The Miranda warning is born 48 years ago todayhttp://blog.constitutioncenter.org/2014/06/the-miranda-warning-is-born-47-years-ago-today/
http://blog.constitutioncenter.org/2014/06/the-miranda-warning-is-born-47-years-ago-today/#respondFri, 13 Jun 2014 08:30:17 +0000http://blog.constitutioncenter.org/?p=26111It was 48 years ago today that the phrase “Miranda warning” was born, after the Supreme Court ruled in a landmark case about the Fifth Amendment.

The “Miranda” in the Miranda warning was Ernesto Miranda. He was arrested in March 1963 in Phoenix and confessed while in police custody to kidnapping and rape charges. His lawyers sought to overturn his conviction after they learned during a cross-examination that Miranda wasn’t told he had the right to a lawyer and had the right to remain silent. (Miranda had signed a confession that acknowledged that he understood his legal rights.)

The Supreme Court overturned Miranda’s conviction on June 13, 1966, in its ruling for Miranda v. Arizona, which established guidelines for how detained suspects are informed of their constitutional rights.

The decision consolidated three other cases that dealt with related issues: California v. Stewart, Vignera v. New York, and Westover v. United States.

In a 5-4 decision, Chief Justice Earl Warren said that “it is not admissible to do a great right by doing a little wrong. … It is not sufficient to do justice by obtaining a proper result by irregular or improper means.”

The syllabus for the case includes one of the best-known sentences in American culture.

“The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him,” it says.

Justices John Marshall Harlan II and Byron White issued dissents.

“Nothing in the letter or the spirit of the Constitution or in the precedents squares with the heavy-handed and one-sided action that is so precipitously taken by the court in the name of fulfilling its constitutional responsibilities,” said Harlan.

The Miranda warning actually includes elements of the Fifth Amendment (protection against self-incrimination), the Sixth Amendment (a right to counsel) and the 14th Amendment (application of the ruling to all 50 states).

However, there are common misunderstandings about what Miranda rights are, and how they can protect someone under criminal investigation.

First, there isn’t one official Miranda warning that is read to a suspect by a police officer. Each state determines how their law enforcement officers issue the warning.

The Supreme Court requires that a person is told about their right to silence, their right to a lawyer (including a public defender), their ability to waive their Miranda rights, and that what they tell investigators under questioning, after their detention, can be used in court.

The Miranda warning is only used by law enforcement when a person is in police custody (and usually under arrest) and about to be questioned. Anything you say to an investigator or police officer before you’re taken into custody—and read your Miranda rights—can be used in a court of law, which includes interviews where a person is free to leave the premises and conversations at the scene of an alleged crime.

In fact, Ernesto Miranda came into a Phoenix police station voluntarily to answer questions in 1963 and also took place in a police lineup.

The police can ask you questions about identification, including your name and address, without a Miranda warning. And they can use any spontaneous expressions made by you as evidence—for example, if you say something without the prompting of police before you’re taken into custody.

Of course, you’re still protected by your Miranda rights—after you’re detained—even if you waive them after an arrest. At any time, during an interrogation, you can stop answering questions and ask for a lawyer.

As for Ernesto Miranda, though his original conviction was set aside by the Supreme Court ruling, he was retried and convicted, and was in jail until 1972–then in and out of jail several more times until 1976. After being released in 1976, he was fatally stabbed during a bar fight. His suspected killer was read his Miranda rights and didn’t answer questions from police. There was never a conviction in Miranda’s death.

Forty-nine years ago today, the Supreme Court ruled in a landmark case about contraception use by married couples that laid the groundwork for a constitutional “right to privacy” in the United States.

Writing for a 7-2 majority in Griswold v. Connecticut, Justice William O. Douglas famously said that a general right to privacy is found in the “penumbras,” or zones, created by the specific guarantees of several amendments in the Bill of Rights.

It was nearly a century prior to the decision, however, that its wheels were set in motion.

In 1879, Connecticut passed a law that criminalized the use of contraception: “Any person who uses any drug, medicinal article or instrument for the purposes of preventing conception shall be fined not less than forty dollars or imprisoned not less than sixty days.”

The law went on: “Any person who assists, abets, counsels, causes, hires or commands another to commit any offense may be prosecuted and punished as if he were the principal offender.”

Prior to Griswold, challenges were made to the Connecticut law but were never heard on the merits of their claims. In Tileston v. Ulliman(1943), the Supreme Court dismissed a challenge from a doctor based on a lack of standing, as he had not demonstrated a threat to his personal life or liberty. Similarly, in Poe v. Ulliman (1961), the Court dismissed a challenge from a woman based on a lack of standing, as the woman had not actually been prosecuted under the law.

But in 1961, opportunity emerged. Estelle Griswold, the executive director of the Planned Parenthood League of Connecticut, and Dr. C. Lee Buxton, medical director for the League, opened a new health clinic in New Haven. As a result, they were arrested and convicted for providing information and advice to married couples seeking contraception. They were also fined $100 each.

Griswold and Buxton appealed their case immediately, but their conviction was upheld by the Appellate Division of the Circuit Court and by the Connecticut Supreme Court.

With nowhere left to turn, the pair looked to the U.S. Supreme Court. They argued that the Connecticut law violated their due process rights under the Fourteenth Amendment.

The Court ultimately agreed—and went even further. A “right to marital privacy” had been violated, it said, an integral part of a more general right to privacy built upon several other rights explicitly defined.

“The First Amendment has a penumbra where privacy is protected from governmental intrusion,” the Court said. “While it is not expressly included in the First Amendment, its existence is necessary in making the express guarantees fully meaningful.”

The Court also pointed to the Third Amendment (prohibition against the quartering of soldiers), the Fourth Amendment (protection against “unreasonable searches and seizures”) and the Fifth Amendment (prohibition against self-incrimination) as further examples of privacy guarantees.

Undergirding the majority’s analysis was the Ninth Amendment, which says that the rights of the people are not limited to those enumerated in the Constitution. The Fourteenth Amendment allowed the Court to bring these protections to bear against state law.

In his concurrence, Justice Arthur Goldberg argued that the Ninth Amendment alone allowed the Court to find a “fundamental” right to marital privacy without needing the support of others. In separate concurrences, Justice John Marshall Harlan and Justice Byron White called the Connecticut law simply a violation of “liberty” under due process protection of the Fourteenth Amendment.

Griswold and the general right to privacy have since been cited in many important rulings, including Eisenstadt v. Baird (1972; right of unmarried couples to use contraception), Roe v. Wade(1973; right of women to an abortion) and Planned Parenthood v. Casey(1992; upholding abortion rights).

Nicandro Iannacci is a web strategist at the National Constitution Center.

]]>http://blog.constitutioncenter.org/2014/06/contraception-marriage-and-the-right-to-privacy/feed/0Why ex-IRS official Lerner likely faces charges after taking the Fifthhttp://blog.constitutioncenter.org/2014/04/why-ex-irs-official-lerner-likely-faces-charges-after-taking-the-fifth/
http://blog.constitutioncenter.org/2014/04/why-ex-irs-official-lerner-likely-faces-charges-after-taking-the-fifth/#respondThu, 10 Apr 2014 15:52:52 +0000http://blog.constitutioncenter.org/?p=32212On Thursday, a House committee is expected to take contempt action against former Internal Revenue Service official Lois Lerner, based on how she asserted her Fifth Amendment rights. But would Lerner face jail time in the case?

Prison time seems unlikely, but Lerner’s case could trigger a public debate about the fine points of taking the Fifth Amendment. And with the Republicans controlling the House, contempt of Congress charges would seem to be imminent.

Lerner led an IRS division that reviews applications for tax-exempt groups, and she was called to testify before Congress about the alleged profiling of conservative groups for extra scrutiny by the IRS.

A House committee issued a subpoena compelling Lerner to testify before it.

Lerner, the former head of the IRS tax-exempt organizations office, said in advance of her March 2013 testimony that she would assert her Fifth Amendment privilege and refuse to answer questions from House members during committee hearings about the IRS’s targeting of conservative nonprofit groups.

However, Lerner then read an opening statement at the hearing, setting off a debate about whether she had waived her Fifth Amendment rights by reading the statement.

Republicans on the committee believed the opening statement invalidated her right to take the Fifth Amendment during testimony, and her refusal to speak since is an act of contempt.

If Lerner is found in contempt by a vote of the entire House, then she could theoretically face criminal prosecution, and under an obscure legal provision she could be imprisoned by the House itself .

Under a long-dormant theory called inherent contempt, not used since 1935, the House has the power to have someone brought in front of it by the Sergeant-at-Arms for trial at the bar. If the person doesn’t testify or is found guilty of contempt, he or she can be detained for the entire length of the congressional session, if needed.

The Congressional Research Service says the practice has fallen out of favor because it is time consuming, but a House select committee could theoretically conduct a similar procedure.

Lerner also could be charged under a criminal contempt statute, which would send the matter to the executive branch for criminal prosecution. That would put the ball in the court of Attorney General Eric Holder (himself a target of a congressional contempt effort). The Holder case from 2012 is still in the court system.

Or in a more likely scenario, Congress can rely on the judicial branch to enforce a congressional subpoena under a civil judgment from a federal court. If Lerner didn’t comply with a ruling against her, she could face contempt of court charges and not contempt of Congress charges.

A key part of any Lerner case would be the Fifth Amendment. House Oversight and Government Reform Committee chair Darrell Issa and the committee’s top Democrat, Elijah Cummings, disagree about the Fifth as the basis for the contempt charges.

At Issa’s request, the House Office of General Counsel issued an opinion that Issa’s committee is well within its legal rights to say Lerner lost her Fifth Amendment protection when she made her introductory statement.

The General Counsel disputed a memo prepared for Cummings by a former CRS attorney, which argued the House committee didn’t have a legal case about Lerner’s Fifth Amendment statements. The General Counsel said Lerner had been “duly apprised” that the committee had rejected her Fifth Amendment claims.

Cummings argued in a letter to House Speaker John Boehner that Issa didn’t take the necessary actions at a March 2014 hearing when he abruptly ended a hearing on the matter. He said Issa “failed to take the basic — but Constitutionally required — steps necessary to hold [Lerner] in contempt,” Cumming said, because Issa ended the hearing without “clearly directing her to answer the committee’s questions.”

As for Lerner facing jail time if she is found in contempt of Congress, the last person to receive a prison sentence in a related case was Rita Lavelle in 1983. The former EPA official won her contempt case in court, but she was found guilty on a perjury charge and served a short sentence.

But Lerner faces other potential legal issues. The House Ways and Means committee recommended charges on Wednesday against Lerner for her alleged actions in targeting Tea Party groups. Lerner’s attorney has called the allegations “ridiculous.”

]]>http://blog.constitutioncenter.org/2014/04/why-ex-irs-official-lerner-likely-faces-charges-after-taking-the-fifth/feed/0Man successfully argues the Fifth in deer killing casehttp://blog.constitutioncenter.org/2014/03/man-successfully-takes-the-fifth-in-deer-killing-case/
http://blog.constitutioncenter.org/2014/03/man-successfully-takes-the-fifth-in-deer-killing-case/#respondThu, 27 Mar 2014 10:00:45 +0000http://blog.constitutioncenter.org/?p=32035In central Pennsylvania, a farmer apparently has won an expensive constitutional argument over his Fifth Amendment right to evasively answer a game warden’s questions about a recently deceased deer.

The wire service obtained the summary transcript of the case, which posed an interesting legal argument about a little-known Pennsylvania statute. The law makes it illegal to refuse to provide answers to a game commission official asking questions under certain circumstances.

On the evening of Nov. 7, 2012, a game warden went to Coble’s farmhouse to investigate a tip about what is known locally as jack lighting, or using a spot light along with a gun to kill deer out of season.

The game warden believed that Coble was being evasive when he asked questions about the incident. The AP says Coble and the warden then drove around Coble’s property and came across Coble’s daughter and another person in the possession of a dead deer. Coble asked the warden to leave the property. At some point after the incident, Coble acknowledged he was present when the deer was killed, said the AP.

Under an obscure Pennsylvania law, Coble was charged with a summary offense for not answering initial questions posed by the game warden, and then acknowledging his presence at the deer killing scene.

Constitution Daily found the actual statute online in the state’s Game and Wildlife code, under “Unlawful activities” related to the “Destruction for Agricultural Protection” of deer and other wildlife.

“It is unlawful for any person while acting under the provisions of this subchapter to … Refuse to answer, without evasion, upon request of any representative of the commission, any pertinent question pertaining to the killing or wounding of any game or wildlife killed or wounded, or the disposition of the entire carcass or any part thereof.”

Coble hired an attorney to fight the charge, believing he was not compelled to answer questions initially under his Fifth Amendment rights against self-incrimination.

Under the Supreme Court’s interpretation of the Fifth Amendment in the Miranda case, information willfully given to an investigator before someone is taken into custody—and read their Miranda rights—can be used in a court of law, which includes interviews where a person is free to leave the premises and conversations at the scene of an alleged crime.

But a suspect can refuse to answer questions at any time in the investigative process. The Supreme Court also held in June 2013 that such silence can be used as evidence in court in its Salinas v. Texas ruling.

“There’s no exception for the Game Commission under our Constitution to give them any greater police powers or less police powers than officer Joe Smith, walking the beat,” Zagurskie told the AP. “It’s so odd that that persists out there, and I think they believe that.”

Zagurskie’s argument was that the statute forced Coble to answer questions, or face punishment for an “unlawful” act.

The Perry County District Attorney then sided with Coble, and not the Game Commission, and the state attorney general and the Game Commission didn’t contest the appeal, which went in favor of Coble last week.

When asked why he fought the fine, Coble had a simple answer: “ It’s an infringement on my constitutional right. I mean, a whole lot of my constitutional rights.”